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As Pre-Election Pause Comes to an End, Look First to Arizona (and Nevada and Georgia)

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Three times — with the Russian investigation, the Ukraine impeachment, and the January 6 insurrection — the GOP had a ready-made opportunity to distance the party from Donald Trump’s corruption. Each time, they not only declined to take that opportunity, but instead consolidated as a party behind Trump.

Given the swirl of investigations around Trump, Republicans will likely will have a fourth opportunity, this time at a moment when Ron DeSantis’ fortunes look more promising than Trump’s own.

That doesn’t mean Republicans will take it. Indeed, there are some Republicans — people like Jim Jordan — whose electoral future remains yoked to Trump’s. There are a even few members of Congress — Scott Perry, above all — whose legal future may lie with Trump.

But the possibility that yesterday’s results will change the Republican commitment to defending Trump at all cost will be an important dynamic in the face of any prosecutorial steps that DOJ takes now that the pre-election pause on such steps is over.

An indictment of Trump is not going to happen today. In the stolen document case, that’s likely true because DOJ will first want to ensure access to the unclassified documents seized in August, something that won’t happen until either the 11th Circuit decision reverses Judge Aileen Cannon’s decision to appoint a Special Master (that will be ripe for a hearing after November 17) or after a judgement from Special Master Raymond Dearie on December 16 that Cannon chooses to affirm. It’s not impossible, however, that DOJ will take significant actions before then — perhaps by arresting one or more of Trump’s suspected co-conspirators in hoarding the documents, or by executing warrants at other Trump properties to find the documents still believed to be missing.

In the January 6 case, DOJ’s unlikely to take action against Trump himself anytime soon because — by my read at least — there’s still a layer of charges DOJ would have to solidify before charging Trump, both in the prong working up from the crime scene (Roger Stone’s name continues to come up regularly in both the Oath Keeper and Proud Boys cases), and in the fake elector plot. With the testimony of Pence’s key aides secured before the election, Trump’s targeting of his Vice President may be the part of the investigation closest to fruition. There are probably phones — like those of Boris Epshteyn and John Eastman — that DOJ has not finished exploiting, which would have to happen before any charges.

Remember that the phone of Scott Perry — one member of that closely divided House — is among those being exploited right now.

In fact, particularly given the outstanding vote, a more interesting step DOJ might soon take would affect Arizona, even as the close election is settling out. There were several states where DOJ subpoenaed the bulk of those involved in the fake elector plot (here are two summary posts — one, two — of the most recent overt investigative steps). There’s one state, and I think it is Arizona (I’m still looking for the report), where everyone blew off these subpoenas. Mark Finchem is one of the people named on the subpoenas (though he appears to have clearly lost his bid to become Secretary of State).

In other words, in several states (NV, GA, and PA are others), DOJ was preparing the work to unpack the role of key Republicans in both states. Unpacking that role almost necessarily precedes a Trump indictment. But it will also significantly affect the electoral aftermath of these close states.

And all that’s before you consider that Fani Willis’ own pre-election pause will also end. Indeed, Newt Gingrich lost a bid to kill a subpoena in that investigation today.

As noted, the GOP calculus on how to respond to these investigations could change now that Trump has proven a loser once again (or maybe not!). But it’s worth remembering that top Republicans in at least four swing states — swing states that are still counting votes — are implicated in that investigation.

Judge Raymond Dearie Prepares to Consult with the Archives

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In his last act before today’s election, Special Master Raymond Dearie issued the following order:

I’ve added the new dates to the timeline below.

The December 1 status conference, which has attracted the most attention, is scheduled for such time as Dearie will have had a chance to review the two sides’ disputes. More importantly, it comes after the 11th Circuit will have this issue fully briefed — and could well have decided to stop the entire process. It will also come after most results of the election will have been decided. It will be public, so Trump will have to make his bid to claw back all the documents he stole before the press.

The notice that he will consult NARA is a bit more interesting. As Dearie notes, this was specifically permitted in Judge Aileen Cannon’s order of appointment. At the first status hearing, Dearie said he would alert Trump before making such consultation. This order serves primarily to tell Trump that this is his chance — while his team is writing their 11th Circuit response and drawing up their general document — to weigh in. But nothing will prevent Dearie from making this consultation.

Dearie knows a good deal about what NARA will say, because the Presidential Records Act is clear. Any document Trump saw as President is a Presidential record. Most of Trump’s claims so far are without merit, even ignoring that the documents were seized with a valid warrant and have evidentiary value.

But the order will ensure that Trump makes a three-page argument about how he is above the PRA. And it’ll provide another authority on which Dearie can rely to rule that Trump cannot convert government documents to his personal property by the mere act of stealing them.

Update: Tweaked timeline.

Timeline

October 13: DOJ provides materials to Trump

By October 14: DOJ provides notice of completion that Trump has received all seized documents

On or before October 14: DOJ revised deadline to 11th Circuit

October 18: Phone Special Master conference

October 20: Deadline for disputes about Executive Privilege and Presidential Records Act on filtered material

October 24: Date Trump unilaterally declares his deadline to comply with Dearie’s order

October 25: Trump rethinks and submits his version of disputes

October 26: Both sides agree to brief general issues; Dearie resolves the remaining privilege issues and accepts briefing dates

November 2 (21 days after notice of completion): Trump provides designations for all materials to DOJ

November 7: Dearie reveals he will consult with NARA

November 8: Election Day; Principal briefs due to Dearie

November 10, 2022: Trump revised deadline to 11th Circuit; deadline to complain about consultation with NARA

November 12 (10 days after November 2): Both sides provide disputes to Dearie; response briefs to Dearie

November 17: DOJ revised reply to 11th Circuit

December 1: Status conference

December 16: Dearie provides recommendations to Cannon

Jim Trusty Tells Hand-Picked Special Master Raymond Dearie to Fuck Off

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At the beginning of a status hearing before Raymond Dearie the other day, Jim Trusty suggested they had until November 12 to submit their designations on privilege for the remaining 21,792 pages of documents. DOJ attorney Julie Edelstein corrected him, and said their deadline was November 2.

Per Aileen Cannon’s order throwing out much of Dearie’s proposed work plan and extending deadlines, that appears to be right. That order set that deadline for 21 days after DOJ issued a notice of completion to indicate Trump had the documents with a spreadsheet to track everything.

No later than twenty-one (21) calendar days after the receipt of Defendant’s Notice of Completion, Plaintiff shall provide the Special Master and Defendant with one comprehensive, annotated copy of the spreadsheet described above that specifies, for each document, whether Plaintiff asserts any of the following:

a. Attorney-client communication privilege;

b. Attorney work product privilege;

c. Executive Privilege;

d. Presidential Record within the meaning of the Presidential Records Act; and

e. Personal record within the meaning of the Presidential Records Act.

Plaintiff’s designations shall be on a document-by-document basis.

On paper, at least, it seems that Edelstein is correct. DOJ submitted their notice of completion on October 12 (two days before Cannon’s deadline). The deadlines that trigger off that should be November 2 (for Trump to submit designations) and November 12 (to submit disputes to Dearie).

It’s worth keeping that deadline dispute in mind as you consider what Jim Trusty did last night.

First, DOJ submitted a letter purporting to summarize the disputes between the two sides about the privilege determinations for fifteen documents that Dearie must issue a ruling on. I’ll come back to those in a follow-up; the important detail is the document shows Trump making ridiculous claims. As a reminder, this page has links to most documents from the stolen document case and my posts.

Hours later, Jim Trusty filed a letter saying that Trump’s team believed both sides were going to file a joint document, and because DOJ hadn’t and because Trump doesn’t agree with some of DOJ’s designations, they’re not going to file their disputed items until October 24, Monday.

As noted in the Defendant’s October 20, 2022 submission (ECF 150) the parties met and conferred regarding Filter A documents on October 19, 2022. Up until receipt of the Defendant’s October 20, 2022 filing, we anticipated that there would be a joint submission and an exchange between the parties preceding that joint submission to confirm both parties’ positions. This is consistent with the process that was undertaken for the October 3, 2022 joint submission with the Filter Team. Instead, the government filed its own log and presented its legal positions on the documents for which there is dispute between the parties.

Unfortunately, the log submitted by the government is not fully accurate as to the Plaintiff’s position on various documents.

In light of these facts, the Plaintiff will file our position on the documents that remain in dispute by the close of business on October 24, 2022.

Since Aileen Cannon decided to override Dearie and start changing deadlines randomly and unilaterally, it has been unclear what the deadlines or workplan will be on this case — the single certain thing is that, in the end, Trump will complain about Dearie’s designations and Cannon will review them de novo. Both Cannon’s original order and her Calvinball order overriding Dearie set initial deadlines for privileged determinations, but have no follow-up deadlines.

But in an October 7 order, Dearie did set deadlines. Trump’s 5-day deadline to complain about any orders has passed, and unless the Cannon Calvinball has gotten really tricksy, I’m not aware of anything overriding that deadline.

And that deadline was yesterday.

Trusty had enough time to review the DOJ filing and disagree and at least note about which items there’s a disagreement. There are only 15 documents here!!

But instead, Trump responded to the public docketing of his absurd claims by spending the time to write up a letter announcing he was taking his toys and going home for the weekend to pout. The best way to understand this action is that Trump simply doesn’t believe Judge Dearie has any authority to require actions of him.

And so Dearie could take the DOJ report and issues rulings, which might result in a report that came out early enough before the election for Cannon to have to overrule them before it. But if that happens, Trump will simply say he wasn’t part of that process.

Update: Dearie has noted that Trump’s response is untimely and given him until end of business today.

Dates

October 7: Dearie issues order on filter team materials, sets October 10 and October 20 deadlines (in bold)

October 10: Deadline to return originals of Category B documents to Trump

October 11: DOJ Reply to Trump Emergency Motion at SCOTUS

October 12: Deadline to complain to Cannon about Dearie’s October 7 order; Notice of Completion submitted

October 13: DOJ provides materials to Trump

By October 14: DOJ provides notice of completion that Trump has received all seized documents

On or before October 14: DOJ revised deadline to 11th Circuit

October 18: Phone Special Master conference

October 20: Deadline for disputes about Executive Privilege and Presidential Records Act on filtered material

October 24: Date Trump unilaterally declares his deadline to comply with Dearie’s order

November 2 (21 days after notice of completion): Trump provides designations for all materials to DOJ

November 8: Election Day

November 10, 2022: Trump revised deadline to 11th Circuit

November 12 (10 days after notice of complete): Both sides provide disputes to Dearie

November 17, 2022: DOJ revised reply to 11th Circuit

December 16: Dearie provides recommendations to Cannon

January 3: New Congress sworn in

No deadline whatsoever: Cannon rules on Dearie’s recommendations

Seven days after Cannon’s no deadline whatsoever ruling: Trump submits Rule 41(g) motion

Fourteen days after Cannon’s no deadline whatsoever ruling: DOJ responds to Rule 41(g) motion

Seventeen days after Cannon’s no deadline whatsoever ruling: Trump reply on Rule 41(g)

Judge Aileen Cannon Risked the Safety of the Country to Protect Two Probably Public Letters

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There’s a detail from yesterday’s Raymond Dearie hearing that I’ve seen no other journalist cover: that filter team attorney Anthony Lacosta described sending a public link of this document to Trump attorney Jim Trusty on September 30.

If it’ll help the parties, I sent email to Trusty on 9/30 that sent a copy of letter at issue. I sent link, they appear to be the same, all that’s missing is signature.

We know from the privilege inventory that was accidentally docketed that it’s an 11-page letter from then Trump attorney Marc Kasowitz to Robert Mueller.

Lacosta mentioned that the letter had been published. That must mean the letter is this one, published by the NYT on June 2,2018 (here’s the text for those who can’t access the NYT).

As I noted weeks ago, this document from the same inventory also is almost certainly a letter released publicly years ago, too.

Harold Bornstein, who was then Trump’s personal physician, released a one-page letter dated September 13, 2016 as part of Trump’s campaign for President.

In other words, two of the documents that Judge Aileen Cannon pointed to in order to claim that Trump was suffering a grave harm that justified enjoining an ongoing criminal investigation into some of the most sensitive documents in US government have probably been public for years. Indeed, the Bornstein letter was released by Trump himself.

Here’s how the government described the harm Judge Cannon caused to the United States by enjoining DOJ’s access to these documents in their appeal to the 11th Circuit.

a. The government has a “demonstrated, specific need” for the records bearing classification markings

The government’s need for the records bearing classification markings is overwhelming. It is investigating potential violations of 18 U.S.C. § 793(e), which prohibits the unauthorized retention of national defense information. These records are not merely evidence of possible violations of that law. They are the very objects of the offense and are essential for any potential criminal case premised on the unlawful retention of the materials. Likewise, these records may constitute evidence of potential violations of 18 U.S.C. § 2071, which prohibits concealment or removal of government records.

The records bearing classification markings may also constitute evidence of potential violations of 18 U.S.C. § 1519, prohibiting obstruction of a federal investigation. As described above, on May 11, 2022, Plaintiff’s counsel was served with a grand-jury subpoena for “[a]ny and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings.” DE.48-1:11. In response, Plaintiff’s counsel produced an envelope containing 37 documents bearing classification markings, see MJ-DE.125:20-21, and Plaintiff’s custodian of records certified that “a diligent search was conducted of the boxes that were moved from the White House to Florida” and that “[a]ny and all responsive documents accompany this certification,” DE.48-1:16. As evidenced by the government’s subsequent execution of the search warrant, all responsive documents did not in fact accompany that certification: more than 100 additional documents bearing classification markings were recovered from Plaintiff’s Mar-a-Lago Club. Those documents may therefore constitute evidence of obstruction of justice.

The government’s compelling need for these records is not limited to their potential use as evidence of crimes. As explained in the stay proceedings, the government has an urgent need to use these records in conducting a classification review, assessing the potential risk to national security that would result if they were disclosed, assessing whether or to what extent they may have been accessed without authorization, and assessing whether any other classified records might still be missing. The district court itself acknowledged the importance of the government’s classification review and national security risk assessment. DE.64:22-23. The government has further explained, including through a sworn declaration by the Assistant Director of the FBI’s Counterintelligence Division, why those functions are inextricably linked to its criminal investigation. DE.69-1:3-5. For example, the government may need to use the contents of these records to conduct witness interviews or to discern whether there are patterns in the types of records that were retained. The stay panel correctly concluded that a prohibition against using the records for such purposes would cause not only harm, but “irreparable harm.” Trump, 2022 WL 4366684, at *12; see also id. at *11. Plaintiff has never substantiated any interest that could possibly outweigh these compelling governmental needs, and none exists.

b. The government has a “demonstrated, specific need” for the remaining seized records The government also has a “demonstrated, specific need” for the seized unclassified records. The FBI recovered these records in a judicially authorized search based on a finding of probable cause of violations of multiple criminal statutes. The government sought and obtained permission from the magistrate judge to search Plaintiff’s office and any storage rooms, MJ-DE.125:37, and to seize, inter alia, “[a]ny physical documents with classification markings, along with any containers/boxes (including any other contents) in which such documents are located, as well as any other containers/boxes that are collectively stored or found together with the aforementioned documents and containers/boxes,” MJ-DE.125:38. The magistrate judge thus necessarily concluded that there was probable cause to believe those items constitute “evidence of a crime” or “contraband, fruits of crime, or other items illegally possessed.” Fed. R. Crim. P. 41(c)(1), (2); see MJ-DE.57:3.

That is for good reason. As an initial matter, the unclassified records may constitute evidence of potential violations of 18 U.S.C. § 2071, which prohibits “conceal[ing]” or “remov[ing]” government records. Moreover, unclassified records that were stored in the same boxes as records bearing classification markings or that were stored in adjacent boxes may provide important evidence as to elements of 18 U.S.C. § 793. First, the contents of the unclassified records could establish ownership or possession of the box or group of boxes in which the records bearing classification markings were stored. For example, if Plaintiff’s personal papers were intermingled with records bearing classification markings, those personal papers could demonstrate possession or control by Plaintiff.

Second, the dates on unclassified records may prove highly probative in the government’s investigation. For example, if any records comingled with the records bearing classification markings post-date Plaintiff’s term of office, that could establish that these materials continued to be accessed after Plaintiff left the White House. Third, the government may need to use unclassified records to conduct witness interviews and corroborate information. For example, if a witness were to recall seeing a document bearing classification markings next to a specific unclassified document (e.g., a photograph), the government could ascertain the witness’s credibility and potentially corroborate the witness’s statement by reviewing both documents.

In short, the unclassified records that were stored collectively with records bearing classification markings may identify who was responsible for the unauthorized retention of these records, the relevant time periods in which records were created or accessed, and who may have accessed or seen them. [my emphasis]

The government needs to figure out whether Trump’s negligence caused any compromise of highly sensitive documents.

But Judge Cannon decided that letters Trump released to impress voters are more important.

Judge Dearie Confirms Trump Has Claimed Executive Privilege Over a Personal Document

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Raymond Dearie just held his second public status conference in the Trump Special Master proceeding. He had the government explain why, after Trump’s team claimed there were 200,000 pages to review, the total ended up being 22,000.

AUSA Steve Morrison explained that the estimate came from a vendor, which developed its own estimate based off a standard business letter length of just under 20 pages per document, times the 11,000 documents. He noted that the 32 boxes that had been seized could not possibly have fit that much; he gave 82,000 as the max amount.

Mostly, it seemed, Dearie called the conference to express frustration with the paucity of the descriptions behind the designations so far, and concern that he’ll get 11,000 versions of that in November. Several times, he said he wanted an idea of how many disputes to expect on November 12, when he gets the items about which there remains a dispute, so he can at least figure out whether he needs more staff.

There were some specific questions, though.

For example, he asked why the two sides hadn’t been able to decide whether the government already had a copy of what is described as Item 5 in this accidentally docketed inventory, a letter from Marc Kasowitz to Robert Mueller. After some squabbling, Dearie complained, “I have no patience for either one of you on this point. If it’s in Department of Justice possession, either produce it or make a representation it’s in DOJ possession.” Filter Counsel Anthony Lacosta described that he sent Jim Trusty a link on September 30 showing a publicly produced version of the letter that seems to be an exact copy of the one seized. That means it must be this letter published by the NYT on June 2, 2018 (the second one on the page).

Dearie also noted that there was nothing in the four pardon packages included that indicated any legal advice had been given — which suggests Trump is claiming a privilege that should not stand over those as well.

Perhaps most importantly, Dearie indicated that there’s one letter of the documents discussed so far that Trump has claimed is a personal document but over which he has claimed Executive Privilege.

I see a doc for which claim there’s a personal doc, and also a claim that Executive Privilege covers it. Unless I’m wrong, there’s a certain incongruity there. Perhaps plaintiff’s counsel will address that in submission.

That is, Trump is doing precisely what the law doesn’t envision.

And among other things, Dearie is making that clear as the challenge to Judge Cannon’s intervention proceeds at the 11th Circuit.

Udpdate: Corrected documents/pages error in first paragraph.

Update: SCOTUS Will Not Intervene [Yet] In Trump’s Stolen Documents Claim

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Update, 10/13: The Supreme Court just declined to intervene in Trump’s stolen document case. That means that the Special Master review will, unless something entirely unforeseen occurs, be limited to documents without classified markings.

I’m republishing because I think this post best explains the damage that might otherwise have been risked.

I laid out what SCOTUS might review later in this process here.

Given developments in the last two days, here’s how the various schedules pertaining to Trump’s stolen document case intersect (I’ve included the original 11th Circuit deadlines to show the effect of yesterday’s ruling to expedite the merits appeal):

October 5: Finalize a vendor

October 11: DOJ Reply to Trump Emergency Motion at SCOTUS

October 13: DOJ provides materials to Trump

By October 14: DOJ provides notice of completion that Trump has received all seized documents

On or before October 14, 2022: DOJ revised deadline to 11th Circuit

October 19: Original deadline for DOJ appeal to 11th Circuit

21 days after notice of completion (November 4): Trump provides designations to DOJ

November 8: Election Day

November 10, 2022: Trump revised deadline to 11th Circuit

10 days after receiving designations (November 14): Both sides provide disputes to Dearie

November 17, 2022: DOJ revised reply to 11th Circuit

30 days after DOJ appeal (November 18): Original Trump response to 11th Circuit

21 days after Trump reply (December 9): Original DOJ reply to 11th Circuit

December 16: Dearie provides recommendations to Cannon

January 3: New Congress sworn in

No deadline whatsoever: Cannon rules on Dearie’s recommendations

Seven days after Cannon’s no deadline whatsoever ruling: Trump submits Rule 41(g) motion

Fourteen days after Cannon’s no deadline whatsoever ruling: DOJ responds to Rule 41(g) motion

Seventeen days after Cannon’s no deadline whatsoever ruling: Trump reply on Rule 41(g)

As I understand it, one way the 11th Circuit appeal may be expedited is that the panel will be picked, secretly, from the start, giving it a chance to review filings as they come in. And they can schedule an oral argument, if necessary, for almost immediately after the reply brief comes in. It will be a new panel, so the odds are at least one other Trump appointee will get a chance to weigh in, in addition to the two who already ruled against Trump.

The SCOTUS appeal, remember, is for a limited issue: Whether to restore classified records to the matters before Special Master Raymond Dearie and, ultimately, before Judge Aileen Cannon.

Particularly given that even Clarence Thomas, in setting DOJ’s deadline a week out, isn’t treating Trump’s appeal as much of an emergency, I think the most likely scenario is that SCOTUS declines to consider Trump’s appeal. It’s the easiest thing to do, dictated by precedent if SCOTUS feels obliged to follow it, and made more likely by the fact that Cannon has altered the scope of her order. As the timeline above shows, if that were to happen, it might well happen before DOJ’s deadline for its appeal on the merits.

I think the most likely scenario is that the 11th Circuit sustains the opinion that three judges on the Circuit already came to: that Cannon abused her authority to even take the appeal. DOJ has more information about Cannon’s abuses they could choose to include in their brief, such as that Judge Cannon halted a national security investigation based in part on a document Trump made public six years ago. Though by the time Trump files his response, he will have been able to review all the documents seized from his beach resort (barring the classified documents, unless SCOTUS quickly reverses the Circuit). So who knows what kind of imagined injury he’ll invent after seeing all the documents? The Circuit may act quickly enough to rule before Dearie issues his report to Judge Cannon, which is the next most likely time for her to engage in more fuckery. Because of her past fuckery, it doesn’t even appear that Dearie will issue a report on the potentially privileged materials until then either.

In other words, the best scenario — and a not unlikely one — is that SCOTUS first declines to review Trump’s appeal, and then the 11th Circuit rules that Judge Cannon improperly intervened, all of which may well happen before anything else overt happens in Judge Cannon’s docket, though Trump would have the ability to and likely would introduce details learned from his review before the 11th.

But we don’t know.

As I keep saying, anyone who tells you they know how this is going to work out is selling you assurances that can no longer be offered with this 11th Circuit and with this Supreme Court.

One thing many commentators are claiming that bears correction, however, is the claim the only damage the Supreme Court review can do is delay: that even if SCOTUS permits Dearie and Cannon to review the documents with classification markings, it could do no more damage to the DOJ investigation. That is obviously false.

Assume for the moment that SCOTUS does take Trump’s appeal and does rule that Cannon can include classified documents in her review (to be sure, I think that unlikely). And assume for the moment that the 11th Circuit reverses itself and finds that Cannon acted properly by intervening in a national security investigation to protect Trump’s interest in a letter he himself made public six years ago. Assume, too, that the 11th Circuit leaves in place Cannon’s decision to treat this as a “hybrid” motion, yoking the Special Master process to a Rule 41(g) motion.

In that scenario, Dearie would issue his report, including regarding classified records, on December 16. He likely would uphold all DOJ’s assertions regarding classification, because he understands how classification at least used to work, before this case: that the current Executive gets unlimited say over what is classified (which is different than what is National Defense Information). Trump would then object to Dearie’s report (he is guaranteed to when and if Dearie ever makes one). Cannon would then review the report de novo, as she did with Dearie’s work plan. And she would write an opinion that either affirmed Trump on one or two minor documents, or said, effectively, that she agrees with Dearie’s classification designations, but that she believes Trump’s logic — that he declassified these documents by shipping them to Mar-a-Lago, and that’s why he refused to give them back — is reasonable.

There are other things Cannon could do to fuck up the prosecution, for example by deeming the 33 pages of correspondence with NARA included in the Category A documents seized from Mar-a-Lago, Trump’s personal possessions under rule 41(g) and returning them to him, thereby depriving DOJ of evidence that directly pertains to the crimes under investigation.

But the way in which Cannon could most fuck up any charges for 18 USC 793e (though not obstruction) would by by issuing an opinion that — even if she agreed all the documents were classified — nevertheless deemed Trump’s bullshit story, that he believed he had declassified these documents by packing them in a box and shipping them to his beach resort, reasonable.

Charging a former President under the Espionage Act presents unique challenges, but I think they could be overcome given what we know has transpired. We’re even likely to learn that Trump lied to the lawyers who knew better than to ship classified documents to his beach resort, and those lawyers will make compelling witnesses against Trump.

But if Cannon gets the opportunity to review Trump’s bullshit declassification story and deems it reasonable — even though she has virtually no relevant experience from which to judge that issue, even though she’s just one judge big-footing on a lawful warrant, even though such an opinion would likely be overturned on appeal — it might make charging Trump under the Espionage Act prohibitively difficult. That’s because that opinion from a judge that Trump’s bullshit story was reasonable would likely be enough to sway at least one juror, especially if the case were charged in Florida. And DOJ is not going to charge Trump — they’re definitely not going to charge Trump under the Espionage Act — unless they’re sure that the most credible people making these kinds of arguments are potentially implicated witnesses like Kash Patel. Yes, they might still charge obstruction (and they might only charge obstruction anyway), but if Republicans win back one or both houses, they will use an obstruction-only prosecution to claim it was a politicized prosecution.

So yes, Clarence Thomas could do harm by accepting Trump’s appeal and SCOTUS could do harm by ruling in favor of it. I don’t think that’s the most likely outcome (and such a move would likely to lead to further appeals). But there is a risk of harm beyond a simple delay.

Trump’s File B-076: Calvinball Ping Pong

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I spent part of last weekend attempting to understand how Judge Cannon might explain throwing out Raymond Dearie’s work plan (which included a rolling process designed to finish up by November 30). This is what I came up with (by all means please let me know if I’ve made errors, but otherwise, don’t invest too much in this because the big takeaway is that Judge Cannon is playing Calvinball, so the current rules mean little).

What Cannon appears to have done is with no formal notice of what the deadline was or even that ten plus five was no longer operative, treat Dearie’s September 23 filing as his final action in setting the plan, but along the way use her own five day deadline for complaints instead of the September 27 deadline Dearie gave, which is the only way Trump’s temporal complaint would be timely yet have her order not be days premature.

The next day, with no notice of any new deadline, Cannon issued her order throwing out most of Dearie’s plan. I’ve spent hours and days looking at this, and there’s no making sense of the deadlines. Certainly, this could not have happened if any of Dearie’s deadlines had been treated as valid.

DOJ took a look at what Cannon had done and moved the 11th Circuit to accelerate the review process. They cited a number of reasons for the change in schedule. They described that Cannon sua sponte extended the deadline on the review to December 16.

On September 29, subsequent to the parties’ submission of letters to Judge Dearie, the district court sua sponte issued an order extending the deadline for the special master’s review process to December 16 and making other modifications to the special master’s case management plan, including overruling the special master’s direction to Plaintiff to submit his designations on a rolling basis.

Depending on how you make sense of Cannon’s Calvinball deadlines, it was a sua sponte order, because Trump’s complaint about the deadlines (not to mention his complaints generally) came in after the deadline attached to the Dearie plan that Cannon seems to treat as his final official action.

I think what really happened is that Cannon fired Dearie without firing him in response to being told by the 11th Circuit she had abused her authority, ensuring not only that nothing he decides will receive any consideration, but also ensuring that he has almost no time to perform whatever review role he has been given.

Effectively, Judge Cannon has just punted the entire process out after the existing appeals schedule, at which point — she has made clear — she’ll make her own decisions what government property she’s going to claim Trump owns.

I believed, when I wrote that a week ago, Judge Dearie would have no real say in the process until November 14 (see the timeline below), after Trump had made designations on all the seized documents and then spent ten days fighting over those designations with DOJ.

I don’t know what Dearie thought, but on October 4 — one day after receiving the designations from the filter team materials, five days after Cannon’s order — he canceled a scheduled October 6 status hearing, citing the order.

Then, yesterday, he had a say, issuing an order in response to the filter team designations he received on October 3. The order did the following:

  • Reveal a set of about 35 pages of Category A files that Trump had raised no attorney-client privilege over (marked in turquoise below)
  • Ordered the Privilege Review Team to provide those files to the Case Team by October 10 so they can review Trump’s Executive Privilege and Presidential Records Act claims
  • Indicated he would “promptly issue a report making recommendations” about Trump’s attorney client privilege claims as to the remaining Category A and Category C documents
  • In fact of a dispute over whether Dearie should make a privilege designation on file B-076, confirmed there was no dispute about the document in question because Trump made no privilege claim over it
  • Ordered DOJ to return the originals of all the Category B documents to Trump by October 10, including file B-076
  • Set a status hearing for October 18

As I laid out here, Category A documents are government documents involving some legal issue. Category B documents are the personal documents (including those pertaining to Trump’s health, taxes or accounting) that DOJ proposed returning 38 days ago. Category C is a new category, possibly limited to this document turned over to the filter team after the initial filter team inventory was completely,

On Monday, September 26, counsel for the Privilege Review Team provided Plaintiff’s counsel with another example of filter failure. The email in question was identified by the “FBI case team,” and returned to the Privilege Review Team, which is characterizing the communication as non-privileged. Plaintiff believes the email falls squarely into the category of attorney-client privileged.

Possibly it includes different kinds of documents (such as the call logs) that don’t precisely fit the other two categories.

Here’s what we know of the designations so far, with turquoise being things Dearie cleared to share with the Case Team. (I’ve marked items Trump has claimed no privilege over with an N, items he has claimed privilege over parts of with a P, items that he must be claiming privilege over with a Y, and used question marks for items that, because of the additional category, I’m not certain about.)

 

Here’s what happens next, best as I can tell according to the rules of Calvinball.

First by Monday, DOJ will give all the original documents in Category B back. That seems to comply with Judge Cannon’s plans, because according to Judge Cannon’s original order, if both sides agree on the privilege designation for a file, it “shall be handled in accordance with the parties’ agreement.”

If the Privilege Review Team agrees with Plaintiff’s position, the subject document shall be handled in accordance with the parties’ agreement. If the Privilege Review Team disagrees with Plaintiff’s position, the dispute shall go to the Special Master for a report and recommendation and, if either party objects to the report and recommendation, to the Court for de novo review and decision. Failure to object to a report and recommendation within five (5) calendar days shall result in waiver of that objection.

Both sides say Trump should have the originals, and by Monday — a federal holiday — Trump will have the originals back. As I’ve written, that will eliminate one of the harms that Judge Cannon deliberately inflicted on Trump in order to justify getting involved.

It’s the other part of the order I find more interesting: If someone objects to what Dearie has done, they’ve got five calendar days — so until October 12 — to complain to Cannon so she can overrule Dearie.

One side has complained about what Dearie did to not make a privilege determination on B-076, because there’s no dispute: Trump has not claimed privilege over it. Making the determination wasn’t controversial. Rather, deciding to make the determination at all is what one side has complained about.

Document B-076 is a one-page document from Morgan Lewis, the law firm involved in Trump’s taxes.

It’s significant because the duplicate (item 3, which is four copies of the same one-page letter) is one basis for Judge Cannon’s claim that DOJ had made a filter failure. Here’s how the filter team has described it.

An additional seventh box was transferred to the custody and control of the Privilege Review Team agents on August 10 ,2022, after a Case Team agent observed a document on Morgan Lewis letterhead comingled with newspapers.6 Consistent with the filter protocol set forth in the Affidavit, the Case Team stopped its review of the entire box and provided it to the Privilege Review Team agents to conduct a review to identify and segregate potentially privileged materials.

6That document is item Number 3 in Exhibit B (FILTER-B-065 to FILTER-B-068). Also contained within the seventh box were Item Numbers 1 to 4 in Exhibit A (FILTER-A-001 to FILTER-A-005), which the Privilege Review Team agents identified as potentially privileged after receiving custody and control of the box.

And here’s how Judge Cannon used that document (among others) to claim both that Trump was being deprived of personal tax documents and that the filter process had failed.

According to the Privilege Review Team’s Report, the seized materials include medical documents, correspondence related to taxes, and accounting information [ECF No. 40-2; see also ECF No. 48 p. 18 (conceding that Plaintiff “may have a property interest in his personal effects”)]. The Government also has acknowledged that it seized some “[p]ersonal effects without evidentiary value” and, by its own estimation, upwards of 500 pages of material potentially subject to attorney-client privilege [ECF No. 48 p. 16; ECF No. 40 p. 2]

[snip]

Review is further warranted, as previewed, for determinations of privilege. The Government forcefully objects, even with respect to attorney-client privilege, pointing out that the Privilege Review Team already has screened the seized property and is prepared to turn over approximately 520 pages of potentially privileged material for court review pursuant to the previously approved ex parte filter protocol [ECF No. 48 p. 14]. In plain terms, the Government’s position is that another round of screening would be “unnecessary” [ECF No. 48 p. 22]. The Court takes a different view on this record.

To begin, the Government’s argument assumes that the Privilege Review Team’s initial screening for potentially privileged material was sufficient, yet there is evidence from which to call that premise into question here. See In re Sealed Search Warrant & Application for a Warrant by Tel. or Other Reliable Elec. Means, 11 F.4th at 1249–51; see also Abbell, 914 F. Supp. at 520 (appointing a special master even after the government’s taint attorney already had reviewed the seized material). As reflected in the Privilege Review Team’s Report, the Investigative Team already has been exposed to potentially privileged material. Without delving into specifics, the Privilege Review Team’s Report references at least two instances in which members of the Investigative Team were exposed to material that was then delivered to the Privilege Review Team and, following another review, designated as potentially privileged material [ECF No. 40 p. 6]. Those instances alone, even if entirely inadvertent, yield questions about the adequacy of the filter review process.13

13 In explaining these incidents at the hearing, counsel from the Privilege Review Team characterized them as examples of the filter process working. The Court is not so sure. These instances certainly are demonstrative of integrity on the part of the Investigative Team members who returned the potentially privileged material. But they also indicate that, on more than one occasion, the Privilege Review Team’s initial screening failed to identify potentially privileged material. The Government’s other explanation—that these instances were the result of adopting an over-inclusive view of potentially privileged material out of an abundance of caution—does not satisfy the Court either. Even accepting the Government’s untested premise, the use of a broad standard for potentially privileged material does not explain how qualifying material ended up in the hands of the Investigative Team. Perhaps most concerning, the Filter Review Team’s Report does not indicate that any steps were taken after these instances of exposure to wall off the two tainted members of the Investigation Team [see ECF No. 40]. In sum, without drawing inferences, there is a basis on this record to question how materials passed through the screening process, further underscoring the importance of procedural safeguards and an additional layer of review. See, e.g., In re Grand Jury Subpoenas, 454 F.3d 511, 523 (6th Cir. 2006) (“In United States v. Noriega, 764 F. Supp. 1480 (S.D. Fla. 1991), for instance, the government’s taint team missed a document obviously protected by attorney-client privilege, by turning over tapes of attorney-client conversations to members of the investigating team. This Noriega incident points to an obvious flaw in the taint team procedure: the government’s fox is left in charge of the appellants’ henhouse, and may err by neglect or malice, as well as by honest differences of opinion.”).

In other words, this Morgan Lewis document is one of the central documents to Cannon’s argument that the FBI is not to be trusted, that the investigative team has been tainted, that poor Donald Trump is being deprived of his personal tax records.

And Dearie has now made public that that’s bullshit.

But Trump, who didn’t claim it was privileged, now has the opportunity — by October 12 — to complain to Cannon that his hand-picked Special Master is being mean again.

And that would happen before DOJ submits its merits brief to appeal Cannon’s decision to get involved in the first place, which is due on October 14.

Regardless of the error that the 11th Circuit already ruled Cannon had made by intervening, Dearie has now eliminated much of the claimed harm that Cannon invented to intervene. He has ordered returned all the personal medical and tax documents that Cannon used to claim he was being deprived of very sensitive documents. And he has confirmed that for one of three claimed filter failures — the only one, importantly, pertaining to a non-governmental document — was not a privileged document at all.

Trump could ask Cannon to overrule Dearie for even making that public. But that would make it clear — and public for DOJ’s brief — that Cannon was once again intervening to create a harm she could then invoke to claim a need to intervene.

I don’t know whether under Judge Cannon’s Calvinball rules Dearie was supposed to take these steps at all. But if she wants to override them (again), it’ll make it clear that she’s simply creating harms to excuse her intervention.

Update: Reworded the B-076 language per nedu’s comments.

Timeline

September 29, 2022: Cannon order alters Dearie work plan

September 30, 2022: DOJ motion to extradite 11th Circuit appeal

October 3, 2022; Trump response to 11th Circuit; motion to seal privilege log; original privilege status report unsealed; Potentially privileged material designations submitted (under seal)

October 4, 2022: Trump SCOTUS appeal of part of 11th Circuit decision; Dearie cancels October 6 status hearing

October 5: Vendor selected

October 7: Dearie issues order on filter team materials, sets October 10 and October 20 deadlines (in bold)

October 10: Deadline to return originals of Category B documents to Trump

October 11: DOJ Reply to Trump Emergency Motion at SCOTUS

October 12: Deadline to complain to Cannon about Dearie’s October 7 order

October 13: DOJ provides materials to Trump

By October 14: DOJ provides notice of completion that Trump has received all seized documents

On or before October 14: DOJ revised deadline to 11th Circuit

October 18: Phone Special Master conference

October 19: Original deadline for DOJ appeal to 11th Circuit

October 20: Deadline for disputes about Executive Privilege and Presidential Records Act on filtered material

21 days after notice of completion (November 4): Trump provides designations for all materials to DOJ

November 8: Election Day

November 10, 2022: Trump revised deadline to 11th Circuit

10 days after receiving designations (November 14): Both sides provide disputes to Dearie

November 17, 2022: DOJ revised reply to 11th Circuit

30 days after DOJ appeal (November 18): Original Trump response to 11th Circuit

21 days after Trump reply (December 9): Original DOJ reply to 11th Circuit

December 16: Dearie provides recommendations to Cannon

January 3: New Congress sworn in

No deadline whatsoever: Cannon rules on Dearie’s recommendations

Seven days after Cannon’s no deadline whatsoever ruling: Trump submits Rule 41(g) motion

Fourteen days after Cannon’s no deadline whatsoever ruling: DOJ responds to Rule 41(g) motion

Seventeen days after Cannon’s no deadline whatsoever ruling: Trump reply on Rule 41(g)

After 37 Days, Raymond Dearie Ends the Harm Judge Aileen Cannon Deliberately Inflicted on Donald Trump

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As I have written, by her own standards, Aileen Cannon deliberately inflicted harm on Donald Trump in order to justify her intervention in the Trump warrant. On September 5, she ruled that being deprived of his own documents would inflict harm.

being deprived of potentially significant personal documents [] creates a real harm

But on September 1, she refused the request by DOJ’s filter attorneys to return the Category B documents identified in the filter team status update, all the most obviously personal documents seized.

Cannon then pointed to those personal documents in the language justifying her intervention.

The second factor—whether the movant has an individual interest in and need for the seized property—weighs in favor of entertaining Plaintiff’s requests. According to the Privilege Review Team’s Report, the seized materials include medical documents, correspondence related to taxes, and accounting information [ECF No. 40-2; see also ECF No. 48 p. 18 (conceding that Plaintiff “may have a property interest in his personal effects”)].

All of those personal documents were Category B documents.

Cause the harm, then intervene to fix it.

Raymond Dearie has finally ameliorated the harm Judge Cannon was personally responsible for sustaining against Trump since September 1.

Since both sides agreed that DOJ can give back those Category B documents, he ordered DOJ to give back those originals.

The parties also agree that the original Filter B Materials should be returned to Plaintiff. Id. Accordingly, the Court directs the Privilege Review Team to release the original Filter B Materials to Plaintiff by October 10, 2022.

So by October 10, DOJ will finally be able to end the harm that Judge Cannon was sustaining. Altogether, Cannon will have been responsible for at least 37 out of 60 days harm done so far, and possibly as many as 40 days out of 63 days of harm total that she says was done to Donald Trump.

Judge Aileen Cannon Treated a Public Letter about Trump’s Health as More Sensitive than America’s National Security

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As I have shown, had Judge Aileen Cannon left well enough alone, the government would have handed all Category B documents identified by the filter team back to Trump on September 1. Instead, she deliberately inflicted what she herself deemed to be further harm on Trump to justify intervening in the search of Trump’s beach resort.

And now she may have caused even more harm. That’s because, by means that are not yet clear (but are likely due to a fuck-up by one of Cannon’s own staffers), the inventories from both Category A (government documents that deal with a legal issue) and Category B (more personal documents) were briefly posted on the docket. (h/t Zoe Tillman, who snagged a copy)

Those inventories not only show Cannon’s claims of injury to Trump were even more hackish than I imagined. But it creates the possibility that DOJ’s filter team will attempt to retain some of the documents included in Category B, notably records pertaining to the Georgia fraud attempts and January 6, they otherwise wouldn’t have.

Start with the hackishness. The harm that Cannon sustained to justify intervening consisted of preventing DOJ from returning, “medical documents, correspondence related to taxes, and accounting information” to Trump, “depriv[ing Trump]of potentially significant personal documents.” Cannon made DOJ withhold such documents from Trump for a least two additional weeks and then used it to argue that Trump had a personal interest in what DOJ claims are mostly government documents and press clippings.

The single solitary medical document pertaining to Trump (there’s a Blue Cross explanation of benefits that appears to pertain to someone else) is this letter from Trump’s then-personal physician released during the 2016 Presidential campaign.

Not only was it publicly released over six years ago, but details of medicines left off the report and Trump’s role in dictating an earlier version of the letter were widely reported in 2017.

Aileen Cannon held up a national security investigation into highly sensitive documents stored insecurely at a beach resort targeted by foreign intelligence services, in part, because the FBI seized a public letter than had been released as part of a political campaign six years ago.

She personally halted efforts to keep the United States safe, in part, to prevent leaks of a document that Trump released himself six years ago.

But that’s not all she did.

There are documents in both Category A and Category B that may be responsive to subpoenas from the January 6, the DOJ investigation, and Fani Willis’ Georgia investigation.

The December 31, 2020 email from Kurt Hilbert pertaining to Fulton County lawsuits is likely the one investigators turned over to the filter team on September 26 (which Trump’s lawyers claim is privileged).

For some unknown reason (probably that it was sent to the White House, which DOJ considers a waiver of privilege), DOJ put it in Category A.

There are several uninteresting Georgia-related documents included among Category B documents — the Civil Complaint in Trump v. Kemp, retainer agreements pertaining to various Fulton County lawsuits, a retention agreement with Veen, O’Neill, Hartshorn, and Levin, along with another folder with retention agreements pertaining to Fulton County. But this file, including a letter to Kurt Hilbert with a post-it note from Cleta Mitchell, might be more interesting.

There’s also a document pertaining to Joe DiGenova regarding appointing a Special Counsel (as well as might be an effort to get Pat Cipollone to complain about Saturday Night Live’s taunts of Trump).

The DiGenova document might pertain to any number of topics, but like Cleta Mitchell, he has been named in DOJ subpoenas on election fraud.

Similarly, there are documents that might be responsive to and of interest to Tish James in her investigation of Trump’s fraud. Those include:

  • 5 copies of the same one-page letter from Morgan Lewis about taxes
  • A document about a restrictive covenant agreement
  • A confidential settlement between the PGA and Trump Golf
  • Several IRS Form 872s, including one in a folder marked NYC 8/10 (the date of Trump’s deposition with Tish James)
  • An IRS Form 2858 with Molly’s name on it (almost certainly Molly Michael)
  • A signed tax return disclosure consent form

The desk drawer also includes details of Alina Habba’s retention agreements and payments, which she would have found when she searched the drawers to ensure there were not tax documents in there.

The tax documents are likely uninteresting. Some (especially the Hilbert documents) may already be in investigators hands. But the point remains: By preventing DOJ from turning over these Category B documents to Trump on September 1 like they requested permission to do, Cannon has now given DOJ an opportunity to argue these document are not privileged, possibly even that they’re responsive to various subpoenas that might be crime-fraud excepted.

With the exception of the Hilbert emails to the White House, DOJ may still return these — fighting over them may be more trouble than it’s worth. But because this inventory got released, it will now be clear what Trump’s lawyers are attempting to hide. It may even give James or Willis opportunity to subpoena the documents anew.

And it will be clear that Aileen Cannon endangered the United States, in part, based off a claim that a medical record that Trump himself released six years ago is more important than some of the government’s most sensitive documents.

As Tillman noted in her piece on the inventory, there are also details of some of the clemency packages Trump reviews. Those include pardons for Rod Blagojevich, what are probably two Border Patrol agents convicted for shooting a drug smuggler, Ignacio Ramos and Jose Compean, and Michael Behanna, a soldier courtmartialed for killing an Iraqi prisoner, as well as the commutation of Ted Suhl. There’s also one for an “RN” that might be Ronen Nahamani, whose clemency a bipartisan group of politicians supported, including Matt Gaetz. The inclusion of all these clemency packages makes it more likely that Roger Stone’s was among them — though by description, Stone’s pardon was in another drawer of a desk in Trump’s office.

One of the other main categories of Category A documents are letters to NARA, something likely covered by the part of the warrant authorizing the seizure of communications about classified records.

How Trump’s SCOTUS Appeal Shows Why He’s Got a Weaker Legal Argument than a [Former] Gitmo Detainee

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Trump has appealed the part of the 11th Circuit’s decision that ruled DOJ did not have to share classified documents as part of the Special Master process. Trump did not appeal the part of the decision lifting the stay on using the classified documents as part of the criminal investigation.

The parts of this pertaining to classified documents and Presidential authority are even more of a shit-show than the 11th Circuit response was, and for an audience that has actually considered these issues.

But parts of it are jurisdictional and would not be frivolous if this were simply a discovery dispute (as Chris Kise treats it), and not one pertaining to classified information. But it does pertain to classified records.

And that’s why I think this is the most important part of the argument. Trump attempts to dismiss the government’s argument that it could appeal Judge Cannon’s order that it share classified records with Judge Raymond Dearie and Trump.

In its reply before the Eleventh Circuit, the Government made a fleeting statement that orders to disclose classified information are immediately appealable as collateral orders. App. F at 10 (citing Mowhawk Indus., 558 U.S. at 113 n.4; Al Odah v. United States, 559 F.3d 539, 542–44 (D.C. Cir. 2009)). This assertion is without merit.

[snip]

In Al Odah, the Government appealed from an order granting defendant’s counsel access to unredacted “classified” information. 559 F.3d at 543. The District of Columbia Circuit, applying the Cohen test, determined it had jurisdiction to hear the appeal of the collateral order in that case. Id. at 543-44. However, the present case is distinguishable from Al Odah, primarily due to whom the “classified” or “privileged” documents are being disclosed. Unlike in Al Odah, where the unredacted classified documents were ordered to be disclosed to defendant’s counsel, here the materials in question will be provided to the Special Master—a Senior United States District Judge with years of FISA court experience. As Special Master, Judge Dearie will effectively act as an arm of the District Court. It can hardly be suggested that Judge Dearie’s review of these records is in any way akin to dissemination of previously unshared, unredacted, classified information to counsel for Guantanamo Bay detainees.

Additionally, the fact this dispute involves potential Presidential records14 creates a fundamental and significant distinction. Since any purported “classified records” may be Presidential records, President Trump (or his designee, including a neutral designee such as a special master) has an absolute right of access to same under the Presidential Records Act (“PRA”). 44 U.S.C. § 2205(3). Accordingly, President Trump (and, by extension, the Special Master) cannot in any event be denied access to those documents. Given this absolute right of access under the PRA, there is therefore no valid basis to preclude such review. Moreover, there cannot possibly be any valid claim of injury resulting from a statutorily authorized grant of access to a former President and/or his designee.

The Government argued on appeal, without explanation, that showing the purportedly classified documents to Judge Dearie would harm national security. App. D at 17. However, in seeking to stay the Injunction Order pending appeal, the Government then argued it needed to use those same documents to interview witnesses and submit to the grand jury. ECF No. 69 at 17. These positions cannot be reconciled.

14 Even the Government’s own Motion for Stay in the Eleventh Circuit acknowledged the obvious, that any purported “classified records” may be Presidential records. App. D at 10 [my emphasis]

At first, Trump argues that Cannon has not ordered DOJ to share classified records with anyone but Dearie. That’s false: She ordered DOJ to share classified records with Trump’s lawyers.

In fact, in the very next paragraph, Trump admits that Cannon’s order is worse to that in Al Odah a DC Circuit case decided per curiam by a panel including Merrick Garland. Fawzi Khalid Abdullah Fahad Al Odah was a plaintiff in a habeas petition — as an enemy combatant he hadn’t and never was charged with a crime — but he was challenging indefinite detention with inadequate due process. By comparison, Trump has not been charged and if and when he is charged, his lawyers will get to see the classified evidence against him. For now, he’s just a plaintiff and the record is uncontested that the warrant executed on his beach resort involved no gross abuse of his rights.

Without acknowledging that the claim Cannon only ordered DOJ to share with Dearie is false, Trump makes the argument that DOJ should have to share with Trump’s designees under the Presidential Records Act. As DOJ has already noted, of course, that’s only true of the records are where they are supposed to be: In the possession of the Archives. They’re not, and that’s part of the problem.

Another part of the problem is that, elsewhere in this appeal, Trump unquestioningly invokes EO 13526, which governed classified information for the entirety of his term and still does. As I’ve noted, that explicitly says even former Presidents must get waivers of Need to Know requirements to access classified information. Trump never changed that order before he became a former President.

In the next paragraph, Trump then complains that DOJ might complain about sharing all of this information with Dearie (and Trump’s lawyers) but might decide to share some of the information with witnesses. Again, elsewhere in this appeal, Trump unquestioningly invokes Navy v. Egan, which is the Supreme Court precedent that says the President — not the former President — gets to decide who needs access to classified information or not.

And nowhere in this argument do Trump’s lawyers admit something that DOJ laid out explicitly before the 11th Circuit: At least one of them, Evan Corcoran, is a witness or possibly even a co-conspirator (DOJ referred to his lawyers, plural, as potential witnesses, suggesting Lindsey Halligan (who was at Mar-a-Lago during the search) or Jim Trusty has had a role in the obstruction process as well. Of course, Trump also neglects to mention the obstruction part of the investigation, which makes all documents with classification marks proof that Trump defied a subpoena.

In other words, Trump is even more poorly situated than Al Odah, who at least had lawyers uninvolved in his potential security concerns. The only one of Trump’s lawyers who’s definitely not a witness, Kise, is also the one who recently was a registered agent of Venezuela.

As I keep saying in this matter, no one really knows how any of this will turn out. Trump’s argument that Ginni Thomas’ favorite President is no Gitmo detainee surely will work with Clarence, who will decide whether to take this appeal (or ask the entire court to weigh in). But along the way, Trump has compared himself unfavorably — legally, at least — with a former Gitmo detainee.

Update: This tweet thread from Steve Vladeck notes that Trump never describes what irreparable harm he faces if Dearie can’t review the classified records now.

Update: One more thing Trump doesn’t tell SCOTUS: That Judge Cannon has altered her own order, taking the classified documents out of it altogether, which makes Vladeck’s point about emergency relief even more hysterical.

Update: Justice Thomas has given the government a week to respond, which suggests even he doesn’t see this as the emergency it would have to be for SCOTUS to get involved.